SS and AH (Costs)

[2010] FamCAFC 233

FAMILY COURT OF AUSTRALIA

SS & AH (COSTS) [2010] FamCAFC 233

FAMILY LAW - APPEAL – Application for costs – Where appeals were dismissed but had some merit – No order as to costs

Family Law Act 1975 (Cth)

APPELLANT: SS

RESPONDENT: AH

INDEPENDENT CHILDREN’S LAWYER: Jan Kingston

FILE NUMBER: BRF 1070 of 1999

APPEAL NUMBER:	NA	94	of	2008
NA	95	of	2008
NA	51	of	2009

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Perth

JUDGMENT OF: Boland, Thackray & O’Ryan JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE:	30 September 2008
29 September 2008
10 June 2009

LOWER COURT MNC:	[2008] FamCA 821
[2008] FamCA 823
[2009] FamCA 519

REPRESENTATION

COUNSEL FOR THE APPELLANT: Self represented litigant

COUNSEL FOR THE RESPONDENT: Self represented litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Drysdale

SOLICITOR FOR THE APPLICANT: Self represented litigant

SOLICITOR FOR THE RESPONDENT: Self represented litigant

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The application of the Independent Children’s Lawyer for costs be dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym SS & AH (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:       NA 94  of 2008
  NA 95  of 2008
  NA 51  of 2009
File Number:            BRF 1070  of 1999

SS

Appellant

And

AH

Respondent

REASONS FOR JUDGMENT

1. On 5 February 2010 we delivered reasons in relation to three appeals by the mother against orders in proceedings between the mother and the father.

2. We determined that two of the appeals had fallen away by the conclusion of argument, leaving only Appeal NA 94 of 2008 (“the substantive appeal”). In that appeal the mother sought to challenge interim orders which:

   ·discharged an earlier order for joint parental responsibility;

   ·suspended the children’s time with the mother; and

   ·prevented the mother from initiating communication with the children (although the children were able to initiate communication with her). 

3. The majority of the Full Court (Boland and Thackray JJ) found that whilst there was merit in some of the propositions advanced on behalf of the mother, appellate interference was not warranted.  O’Ryan J dissented and would have allowed the substantive appeal. 

4. The orders of the Full Court dismissed all three appeals and laid down a timetable for the filing of submissions in support of any application for costs.

5. The Independent Children’s Lawyer (“the ICL”) filed written submissions on 26 February 2010 seeking an order that the mother pay the ICL’s costs fixed at $13,290.40 or such other sum as the Full Court may consider appropriate.  The mother filed submissions in response on 11 March 2010.  In those submissions, the mother sought that the Full Court stay consideration of the costs application pending the outcome of her application for special leave to the High Court.  On 18 June 2010 the High Court dismissed the mother’s application for special leave and it is therefore unnecessary for us to consider the request for us to delay determination of the costs application.  On 28 July 2010 the mother, without leave, filed supplementary submissions in response to the costs application.

6. The mother claimed in her written submissions that the ICL had failed to comply with the timetable for the filing and service of written submissions.  We do not intend to canvass the merits of her complaint.  The delay, if there was any, was minor and the mother was not in any way prejudiced.  Similarly, we propose to take into account the mother’s supplementary submissions, although they were filed well outside the time permitted by our orders.   

7. In support of the costs application the ICL relied on the fact that the mother was entirely unsuccessful in that all three appeals were dismissed.  The ICL also noted that the mother had relied on more than 70 separate grounds, many of which were said to have been abandoned at the oral hearing.  Reliance was also placed on the fact that the mother originally sought to introduce a “considerable volume” of further evidence, but at the oral hearing sought to rely upon only a small number of documents, which were received by consent. 

8. In her submissions in response to the application for costs the mother claimed she had not been entirely unsuccessful because one member of the bench strongly dissented from the majority decision.  She continued to maintain that the appeal had merit and said she had acted bona fide, in what she regarded as the best interests of the children.  Although she is a health professional, she claimed to be in difficult financial circumstances, having spent “hundreds of thousands of dollars” in legal fees. 

9. In her supplementary submissions, the mother acknowledged her application for special leave to the High Court had been refused, but sought to analyse the brief reasons for decision to demonstrate that this was not because of any lack of merit in her appeal to that Court.  The mother also relied upon a variety of other matters, including events that have occurred since we determined the appeal, which it was claimed supported her belief that the Family Court is pursuing a “personal vendetta” against her.

10. We accept there is some basis for an order that the mother pay all or some of the ICL’s costs.  The mother was entirely unsuccessful in that all three appeals were dismissed.  The manner in which the appeals were conducted (at least until the appearance of senior counsel for the mother at the hearing) would have added to the costs incurred by the ICL.  On the other hand, we accept that the mother had been largely self-represented and was challenging orders which effectively terminated her contact with the children.  Importantly, all three members of the Full Court considered there was some merit in the propositions advanced on behalf of the mother and one member of the bench would have allowed the appeal.  Given the gravity of the orders challenged and the fact there was some merit in the arguments advanced on behalf of the mother, we do not consider this is an appropriate case for an order for costs. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 17 November 2010.

Associate:     

Date:              17 November 2010